Healy on States’ Rights and Libertarian Centralists; Healy versus Bolick and the Institute for Justice

In Gene Healy’s blog post about Liberal Federalism [archived here; also here–see below], he notes, “I’d like to think that the Republican assault on federalism would lead to a resurgence of decentralist liberalism” (emphasis added). As I commented there– it would also be nice to see a resurgence of decentralist libertarianism too.

Franklin Foer has a piece in the NYT Book Review about liberals’ newfound interest in federalism. It’s a nice trip down memory lane, even if, absurdly, he gives credit to Bill Clinton for the unfunded mandates law and welfare reform:

Prodded by a Republican Congress and a conservative Supreme Court, Clinton actually presided over the revitalized federalism that Sandel imagined, and even spent time in the White House huddling with Sandel and Putnam. Federalism suited his declared ambition to move beyond the era of ”big government.” In 1995, he signed a law prohibiting the national government from imposing new burdens on the states without first providing funds to cover any costs. The welfare reform package he ushered into law a year later gave states enormous latitude in remaking social policy.

I’d like to think that the Republican assault on federalism would lead to a resurgence of decentralist liberalism. But I expect the Left’s interest in subsidiarity will last as long as its exile from federal power. Federalism, it seems, is the political virtue without a natural constituency. It’s easy to be in the Leave-Us-Alone Coalition. It takes principle to sign up for the Leave-the-Other-Guy-Alone Coalition. And there’s no deep commitment to the principle of federalism in either party.

By Gene Healy • December 1999 • Volume: 49 • Issue: 12
Lamenting the Supreme Court’s recent batch of pro-federalism decisions, the New York Times termed the Court’s newfound affinity for states’ rights “Supreme mischief,” “deeply disturbing” to right-thinkers everywhere. One expects such talk from dedicated cheerleaders for centralized power. What’s more disturbing, however, is the extent to which the Times’s perspective has gained credence among advocates of limited government. Modern libertarians, rightly concerned with what the Institute for Justice’s Clint Bolick has termed “grassroots tyranny,” ridicule and disparage the time-honored doctrine of states’ rights.

It’s understandable that the under-informed general public associates states’ rights with slavery, Jim Crow, Bull Connor’s police dogs, and “segregation forever.” But classical liberals ought to take a longer view. “States’ rights” merely stands for the propositions that (1) the Constitution should be interpreted strictly with regard to the narrow set of enumerated powers granted the federal government; and (2) that the states can nullify or obstruct federal actions that violate the Constitution. As such, the doctrine has a long and honorable pedigree among advocates of limited government. States’ rights, in the view of classical liberals like Lord Acton, was no mere excuse for states to violate the rights of their citizens. Rather, the independence of the states in the period before the Civil War served as an effective check on federal aggrandizement. As Acton put it, “Centralization finds a natural barrier in the several State governments.”

Modern libertarians tend to have a different perspective, believing that strong federal oversight is indispensable to securing liberty. For example, John McLaughry, head of the libertarian Ethan Allen Institute, says the doctrine of states’ rights is little more than “a hoary legacy from the days of human slavery.” This view rests on a tendentious version of history, one quite at odds with Lord Acton’s, to the effect that in the nineteenth century, state governments were a more serious danger to individual freedom than the federal government. (That perspective is perhaps best encapsulated in Bolick’s Grassroots Tyranny [1993]. See also the Civil War history offered in “Reviving the Privileges or Immunities Clause” by Kimberly C. Shankman and Roger Pilon; Cato Policy Analysis No. 326, at http://www.cato.org.)

The true story is more complicated, and, from a libertarian perspective, far more favorable to the states than the federal government. During the nineteenth century, the people, through the agency of their respective states, repeatedly and effectively resisted federal tyranny. A brief historical survey will make that clear. It will also, I hope, suggest some reasons why modern libertarians should rethink their hostility to states’ rights.

The “Reign of Witches” and the Kentucky and Virginia Resolutions

The nation was still in its infancy, and the Bill of Rights not a decade old, when the Federalist party flagrantly violated the First Amendment with the Sedition Act. The Act criminalized uttering or publishing anything of a “false, scandalous, and malicious nature” with the intent to bring the government or its officers “into contempt and disrepute.” Anyone found guilty could be fined up to $2,000 and imprisoned for two years. The Federalists promptly put it to use in a crackdown aimed at their political enemies.

One Luther Baldwin was convicted of violating the act for little more than the rough expression of admirable libertarian sentiment. Stumbling into a Newark, New Jersey, saloon, during a parade for President John Adams, Baldwin asked what all the ruckus was. A cannon salute for President Adams, he was told. Baldwin exclaimed that it was all the same to him if the cannon was shot up Adams’s rear end. Other convictions were less amusing. David Brown of Dedham, Massachusetts, was sent to jail for 18 months for refusing Supreme Court Justice Samuel Chase’s order to name associates who shared Brown’s Jeffersonian views. Congressman Matthew Lyon of Vermont, an Irish-born republican radical, was imprisoned for criticizing President Adams’s alleged “continual grasp for power.” While in jail, Lyons was overwhelmingly re-elected to his seat.

Vice President Thomas Jefferson saw the Federalists’ tyrannical rule as a “reign of witches.” He and James Madison determined to oppose the Alien and Sedition Acts through the agency of the state governments of Virginia and Kentucky. As historians Stanley Elkins and Eric McKitrick put it in their book The Age of Federalism, “the protest was taken up in a formal way by no less a power than the constituted legislatures of two states against an act of the national government.” Acting in secret, Jefferson drafted the Kentucky Resolutions, Madison, the Virginia ones. Each articulated the “compact” theory of the Union: that the states are equal partners in the federal union, each with the power to interpret the Constitution and thwart federal abuses thereof.

The Virginia Resolutions warned that “a spirit has in sundry instances, been manifested by the Federal Government… to consolidate the States by degrees, into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy.” The states, declared the Resolutions, “have the right and are in duty bound to interpose for arresting the progress of the evil.” Jefferson’s Kentucky Resolutions urged the other states to join Kentucky “in declaring [the Alien and Sedition] acts void and of no force.”

With Jefferson’s accession to the presidency, the “reign of witches” passed, as Jefferson ended prosecutions under the Acts. But the compact theory of the Union lived on, to be invoked again in the service of individual rights.

Nullifying the Tariff of Abominations

During the nullification “crisis” of 1828-33, the power of the states was again employed to counter federal abuses. In For Good and Evil.’ The Impact of Taxes on the Course of History, Charles Adams describes the disproportionate burden that the federal tariff imposed on the Southern states: “The South exported about three quarters of its goods and in turn used the money to buy European goods, which carried the high import tax.” Most of the revenue was spent on internal improvements and other federal projects in the North.

Understandably, the South chafed at the burdens imposed by the tax system. Some of her most prominent political leaders argued that the Constitution granted no power to tax for the purpose of protecting industry, as opposed to raising revenue. With the tariff of 1828, the “Tariff of Abominations,” the battle was joined. The South Carolina legislature denounced the tariff, which brought duties to their highest pre-Civil War level, as “unconstitutional, oppressive, and unjust.”

Playing Jefferson’s role of 30 years before, Vice President John C. Calhoun secretly wrote South Carolina’s Exposition and Protest, in which he outlined the doctrine of nullification. According to Calhoun, state conventions, the same bodies that had ratified the Constitution, could nullify federal legislation that they considered to be in violation of that document. The federal government thereupon could only enforce the law if it secured a new constitutional amendment through the approval of three-fourths of the states.

Calhoun intended the doctrine as a moderate middle position short of the extreme remedy of secession. But soon, a military clash seemed imminent, as President Andrew Jackson denounced nullification and privately swore to hang Calhoun. In the end, though, South Carolina’s defiance forced a partial climb-down by the feds. Senator Henry Clay of Kentucky helped usher through a bill securing a 20 percent reduction in the tariff.

Disputes over the unjust federal revenue system would play a central role in bringing about the Civil War (contrary to most contemporary accounts, which emphasize slavery to the exclusion of almost everything else). The centrality of the tariff issue is revealed in Lincoln’s First Inaugural, in which he disclaimed any intention to interfere with slavery, but was adamant about collecting federal revenue via the tariff. Republican corporate statism and Northern manufacturing depend ed on the Union and a high tariff. As a troubled editorialist in the March 18, 1861, Boston Transcript put it: “The difference is so great between the tariff of the Union and that of the Confederated States, that the entire Northwest must find it to their advantage to purchase their imported goods at New Orleans rather than at New York …. [The government] would be false to all its obligations, if this state of things were not provided against.”

Personal Liberty Laws

Ironically, the controversy over fugitive slaves would find Southerners clamoring for a strong federal role and cursing the doctrine of nullification. In his Battle Cry of Freedom: The Civil War Era, historian James M. McPherson notes a tension in Southern appeals to states’ rights before 1860: “On all issues but one, antebellum southerners stood for state’s rights and a weak federal government. The exception was the fugitive slave law of 1850, which gave the national government more power than any other law yet passed by Congress.” The South’s deviation from principle on this point stemmed in part from economic motives: the federal government’s assistance in recovering escaped slaves made the peculiar institution more secure. But those Northerners who opposed slavery fought back with a states’-rights-based resistance to the tyrannical and unjust fugitive slave laws.

The federal Fugitive Slave Law of 1793 authorized slave owners and their agents to cross state lines and recapture fugitive slaves by force, bringing them before local magistrates to prove ownership. Under the law, the deck was stacked against the purported fugitive, who lacked the protection of habeas corpus and jury trial, and had no right to testify in his own behalf. Small wonder, then, that Southern bounty hunters were less than meticulous in ensuring they’d captured the right person.

Most of the Northern states responded with “personal liberty laws,” providing the fugitive with the procedural protections denied him by the federal statute, and in several cases subjecting slave hunters to kidnapping charges. In Vermont, for example, all fugitives were declared free, and anyone who attempted to capture one could be subject to 20 years imprisonment or a fine of $10,000.

Not even the Supreme Court could deter the North from the path of resistance. When the Court overturned a kidnapping conviction under Pennsylvania’s personal liberty statute, and voided the statute itself, Pennsylvania merely enacted another. Massachusetts was equally open in its defiance of federal authority. Its legislature passed a law providing-that: “No judge of any court of record in this Commonwealth.., shall take cognizance or grant a certificate in cases that may arise under the third section” of the Fugitive Slave Law of 1793. (Northern defiance of Supreme Court decisions on the slave issue would continue when the Court issued its infamous 1857 opinion in Dred Scott. The Maine legislature, for example, was one of several Northern states to declare that Dred Scott was “not binding, in law or in conscience, upon the government or citizens of the United States.” (Shades of George Wallace!)

To appease an increasingly indignant South, Congress in 1850 passed an even harsher fugitive slave statute. Under that law, proceedings were to be held before (newly created) federal “commissioners,” who would only receive half as much for setting the captive free as they would for ruling in favor of his purported owner. All expenses associated with seizing and transporting the captive would be paid by the federal government.

Northern states found the fugitive slave law of 1850 harder to nullify, since it cut state courts out of the process. Still, abolitionists and their “vigilance committees” mounted vigorous resistance to the bounty hunters by force of arms. In 1851, the federal government felt it necessary to make a show of force in response to that resistance. To assist in the recapture of Thomas Sims, a 17-year-old escaped slave working in Boston as a waiter, the reds provided sufficient firepower to ensure that no band of abolitionist vigilantes could free him. When the federal commissioner ruled for Sims’s owner, 300 armed federal deputies and soldiers led Sims and his captor from the courthouse to the navy yard, where 250 more federal troops waited to put them on a ship heading South.

Every year, in high school history classes throughout the country, Americans learn a story intended to illustrate the beneficence of the federal government: in 1957, Arkansas governor Orval Faubus vowed to prevent the integration of Little Rock’s Central High School; President Eisenhower sent in federal troops to protect black schoolchildren from white Southern mobs. Students might get a more balanced picture of the federal role in race relations if teachers juxtaposed the story of Little Rock’s Central High with the story of Thomas Sims.

Libertarian Centralism

The above examples should not be taken to indicate that the states are natural defenders of liberty, organic extensions of the “People” that can be trusted to protect individual rights. Anyone familiar with zoning laws should know better than to embrace such a romantic notion. Instead, this historical survey suggests that the feds are unlikely to be better guardians of individual liberty than the states, and that divided sovereignty can serve as a check against federal oppression.

These examples also undermine the standard account of antebellum federalism, which amounts to public-school history: statist parables designed to make us feel grateful for the presence of our Federal Protector. If the issue were merely historical accuracy, there would be little reason to quibble. But this history is invoked, even by prominent libertarian legal analysts, to justify a particular political program. These scholars, who might be called “libertarian centralists,” view the federal government as an indispensable partner in the struggle to protect individual rights. To that end, the libertarian centralists have advanced a number of policy proposals that should give classical liberals pause—among them: Congress should be free to comprehensively redesign state and municipal codes using the enforcement powers of the Fourteenth Amendment; using the same powers, Congress can legislate directly on matters affecting liberty, with statutes such as the Church Arson Protection Act; and the Supreme Court should depart from constitutional text and engage in moral theorizing when exercising the power of judicial review. Each of these proposals represents a rather dramatic increase in federal authority over the states. The idea that such increased authority will be used to protect liberty rather than to abuse it, represents, like a second marriage, the triumph of hope over experience.

For example, Bolick, in June 7, 1995, testimony before the House Small Business Committee’s subcommittee on regulation and paperwork, said that “Congress has the power to enforce the 14th Amendment through appropriate legislation. It should use this power to enact an Economic Liberty Act. The provisions are simple: any federal or state law that restrains entry into a business or occupation must be narrowly tailored to a legitimate public health, safety, or public welfare objective.’‘ This appears unobjectionable until one contemplates what that plenary power would mean in the hands of welfare statists.

Another example comes from Roger Pilon, director of the Cato Institute’s Center for Constitutional Studies. In a June 18, 1996, Washington Post op-ed, Pilon wrote, regarding the federal Church Arson Prevention Act, “There is, however, a proper basis for Congress to act in the case at hand. It is the 14th Amendment… [I]f state measures prove inadequate and there is evidence available to Congress that federal intervention is necessary, there is ample authority under the 14th Amendment for Congress to act.”

And in a 1988 Cornell Law Review article titled “Reconceiving the Ninth Amendment,” Boston University law professor Randy Barnett wrote that “Given that the Fourteenth Amendment extends the protection of constitutional rights to acts of state governments, the Ninth Amendment stands ready to respond to a crabbed construction that limits the scope of this protection to the enumerated rights.” Again, although it sounds benign, this view is unjustifiably confident that the federal government won’t use the power to enforce unenumerated “positive welfare rights” on the states.

Patrick Henry, arguing against ratification of the Constitution, admonished Virginians to “Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it, but downright force: Whenever you give up that force, you are inevitably ruined.” The states did not voluntarily “give up” that force in 1861-65; it was wrested from them by federal aggression. Before the Civil War, individuals were protected from centralized coercion by multiple, divided sovereignties, competing in their interpretations of the national charter, and backing their respective interpretations with force. After that war, individuals were confronted with a powerful unitary state, one that justified its aggression—domestic and foreign with appeals to “liberty.”

Libertarian centralists assure us that we can restore true liberty by gaining influence over that state and making its institutions work for us. The history of American federalism suggests a different solution. If there is a libertarian future, it lies in dividing sovereignty in nullification and secession: opposing Power with Liberty at every turn; hammering every fault line in an attempt to crack the edifice; dividing and diminishing Power, in the hope that individuals will be better able to overcome it or, failing that, escape it. Any other route is a diversion, and a potentially dangerous one at that.

To the Editor:

Gene Healy represents a disturbing trend among some libertarians to nostalgically recall the good old days when states were bastions of freedom. Those days never existed; and as James Madison depicts them in Federalist No. 10, even at the founding they were such bastions of tyranny that a stronger national government was called upon to restrain them.

The concept of states’ rights libertarianism is oxymoronic. All libertarians know that states do not have rights. States have powers. The purpose of our federal system is to restrict the powers of both national and state governments.

The Fourteenth Amendment was the product of the most libertarian Congress in history. Properly construed, the amendment’s scope is purely negative in the sense of restraining state and local violations of civil rights.

Let’s see . . . John Calhoun versus Roger Pilon and Randy Barnett? Not exactly a tough choice for libertarians.

To the Editor:

The complete version of the quotation fragment attributed to me by Gene Healy (from my favorable review of Clint Bolick’s Grassroots Tyranny in Reason, October 1993) is this: “Most of those who pass for ‘conservatives’ are proponents of ‘states’ rights federalism,’ a hoary legacy of the days of human slavery.”

There I joined Bolick in criticizing “conservatives” who view the states as a bulwark against federal power, but who have no concern about what the states themselves do to diminish the freedom of their citizens. Examples given are Robert Bork and Edwin Meese III, who champion the Tenth Amendment and dismiss the Ninth.

For libertarians, of which I am generally one, the important goal is not to preserve inviolate some magical balance of countervailing governmental powers, but to protect and enlarge liberty. “States’ rights” in our time has meant unpunished lynchings, Jim Crow laws, denial of the right to vote, exclusion from occupations, and countless burdens and humiliations inflicted on black Americans by racist state governments. When libertarians invoke a higher (federal) power to protect liberty against slavery and its lingering incidents, I think they have a strong case. The principle of “states’ rights” cuts both ways, as Healy shows. The principle of liberty works only to advance liberty.

Incidentally, states have no rights. States have powers. Only individuals have rights.

—John McClaughry
Ethan Allen Institute
Concord, Vermont

To the Editor:

There he goes again. Last August, in a long article in the pages of Liberty, Gene Healy went after my views on the Fourteenth Amendment. My detailed, 7,000-word response appears in the February 2000 issue. Then in the December 1999 issue of The Freeman: Ideas on Liberty, Healy took on Clint Bolick, John McClaughry, Randy Barnett, and me—on the same subject, but with more attention to history than to theory. My response here will be brief.

Healy wants to resurrect “states’ rights” as a brake on federal power. Properly understood, so do I. But in arguing against federal tyranny, he all but ignores state and local tyranny, which the Fourteenth Amendment, his principal target, was designed to address. Thus, he says that “libertarian centralists view the federal government as an indispensable partner in the struggle to protect individual rights.” Yes, we do, but that doesn’t make us “centralists” in any serious sense of that word—because the Fourteenth Amendment, properly understood, affords only limited power.

To be sure, the amendment enhanced federal power by providing federal remedies for state violations of individual rights, which the original design had failed to provide. Most such remedies were meant to be secured through litigation in the courts. Contrary to Healy’s contention, however, that does not authorize judges to engage in “moral theorizing,” although it does require them to invoke the classic common law—as implied by the amendment. And section 5 of the amendment gives Congress, when necessary, the power “to enforce” those provisions. Here again, however, that is not a power “to comprehensively redesign state and municipal codes,” as Healy claims. Rather, it is a power simply to address state violations of rights through “appropriate legislation.”

Have both courts and Congress exercised their powers under the amendment faithfully? Of course not. Whether by design or by misunderstanding, they have often abused their powers. But that is a separate issue, to be addressed on its own terms. Our liberties will be better secured not by abandoning our system of dual sovereignty but by getting it right. That, precisely, is what modern libertarian legal theorists are trying to do.

Gene Healy responds:

Clint Bolick begins by trotting out the states-don’t-have-rights-states-have-powers straw man from his 1993 book Grassroots Tyranny. (John McClaughry apparently also found the phrase irresistible and irrefutable.) But here Bolick confuses natural rights and legal rights. No one—no libertarian, at least—who speaks of a violation of “states’ rights” thereby seeks to ascribe natural rights to an artificial, noncognizant entity like a state.

When a libertarian decentralist calls a federal action a violation of “states’ rights,” he means that the federal government has transgressed its enumerated powers and is claiming jurisdiction over an area that the Constitution reserves to the states. In a similar fashion, we can speak of NATO’s lawless assertion of jurisdiction over a civil war in Yugoslavia as a violation of Yugoslav “sovereignty,” without thereby conceding to Slobodan Milosevic’s government a god-given natural right to kill Kosovar Albanians. I’m curious, would Bolick and McClaughry respond to critics of NATO’s cluster-bomb humanitarianism with “states aren’t sovereign, only individuals are sovereign”?

Bolick suggests that the idea of states’ rights has always been anathema to libertarians. Not so. Libertarian decentralists can draw on a host of classical-liberal thinkers who embraced divided sovereignty and viewed centralization in the name of liberty with intense skepticism. Among them: Thomas Jefferson, Lord Acton, Albert Jay Nock, and Felix Morley. In fact, Bolick must know that “states’ rights libertarianism” is not oxymoronic, because he is familiar with Felix Morley’s work. In Grassroots Tyranny, Bolick repeatedly cites Morley’s classic Freedom and Federalism despite Morley’s embrace of states’ rights and wholesale rejection of Fourteenth Amendment activism. (Morley, who viewed Thad Stevens as an American Robespierre, would also have taken issue with Bolick’s belief that the pro-tax, high-tariff, corporate statists in the Radical Republican junta constituted the “most libertarian Congress in history.”)

As for John Calhoun, Murray Rothbard—who after all knew a thing or two about libertarianism—would have been bemused by Bolick’s notion that Calhoun was far too politically incorrect to be of service to libertarians. Rothbard called Calhoun “one of America’s most brilliant political theorists,” and quoted him at length in For a New Liberty.

If Bolick wants his position on libertarianism and federalism to remain the party line, then when that position is challenged he ought to respond with something more than a few sound bites and a dismissive tone. He ought to make an argument or two.

To his credit, Roger Pilon has made an extended argument on behalf of a strong Fourteenth Amendment, in which he grapples with some of the tough issues that position presents. Pilon’s argument, and my response thereto, will appear in a forthcoming issue of Liberty magazine.

In his letter to Ideas on Liberty, Pilon objects to my use of the term “libertarian centralism.” I remain comfortable with characterizing Pilon’s position in that fashion. The interpretation that Pilon gives to the Fourteenth and Ninth Amendments confers federal jurisdiction over each and every rights violation committed at any level of government, whether it be a municipal recycling program or a local zoning ordinance. If this isn’t centralism, the word has no meaning.

Political power being what it is, centralism in the name of liberty is quite unlikely to lead to liberty. Far too much of Roger Pilon’s argument for a strong Fourteenth Amendment rests on the words “properly understood.” But properly understood, the Commerce Clause, to take one example, merely eliminates interstate trade barriers—it provides no justification for the mammoth administrative state erected in its name. Nonetheless, any anti-federalist transported to late-twentieth century America would consider himself vindicated on seeing what centralism in the name of liberty has wrought.

Murray Rothbard well understood the fragility of parchment barriers to state power. In For a New Liberty he wrote of “the inherent tendency of a State to break through the limits of its written Constitution.” Rothbard quoted none other than John Calhoun to make the point: “it is a great mistake to suppose that the mere insertion of provisions to restrict and limit the powers of the government . . . will be sufficient to prevent the major and dominant party from abusing its powers.”

Pilon sees in the Fourteenth Amendment an effective check on such abuses. I see it as a source of further abuses. Collectivists in Congress and on the federal bench will seize on the expansive construction of the amendment Pilon urges to subvert the very liberties he seeks to secure. In so doing, they are unlikely to be restrained by what Pilon views as the proper understanding of the amendment.

Fragmentation of political power, even—perhaps especially—when such power is invoked in the service of our natural rights, is a surer guarantor of liberty than the goodwill of federal legislators and judges. I’d have thought that this was a respectable position for a libertarian to take. But if, as Bolick and McClaughry suggest, this be heresy—then make the most of it.